Media Mauls Mitchell Memo: ‘This is Not a Trial’

A memo from the sex crimes prosecutor who questioned Christine Blasey Ford before the Senate Intelligence Committee that said “no reasonable prosecutor” would pursue the case Ford described raised hackles from the mainstream media.

Detractors described the memo, written by Rachel Mitchell, as partisan. Reporting said the memo lacks sufficient information to reach the conclusions it does and done in a method that indicates it was prepared for a defense against criminal charges rather than a hearing to determine whether Brett Kavanaugh should be confirmed to the U.S. Supreme Court.

“Though Senate Republicans said the memo was helpful, legal experts from both political parties and advocates for victims of sexual assault on Monday questioned how Mitchell could reach such a conclusion without a fuller investigation and without the ability to cross-examine witnesses such as Mark Judge, the only other person Ford says was in the room when the alleged incident occurred in the summer of 1982,” wrote Emma Brown and Seung Min Kim of the Washington Post[1] under the headline, “Experts Question GOP prosecutor’s memo on Christine Blasey Ford.”

It later quoted[1] a Democratic prosecutor from Manhattan that “Mitchell seemed to misrepresent matters in referring twice to her ‘independent assessment’ and once to her ‘independent review.’

It summarized a Senate Democrat memo[1] that argued Mitchell had “cherry-picked information to undermine Ford” and echoed the talking point that this was a hearing to “determine … the suitability and trustworthiness of an individual nominated to serve for a lifetime appointment on the Supreme Court” and “not a trial.”

Mitchell said in the memo the standards she applied were those of a criminal case and, as Slate put it[2], “she was working within a legal context and could not speak to the standards of a political procedure like a Supreme Court nomination.”

In “Outside Prosecutor Rachel Mitchell Writes Memo Aimed at Discrediting Christine Blasey Ford,” Molly Olmstead of Slate writes[2] that, after Mitchell’s careful and respectful questioning of Ford during the hearing, “Some observers were surprised … to find a dramatically different version of Mitchell in the memo she sent out to Senate Republicans – one much more prosecutorial and partisan.”

“A ‘he said, she said’ case is incredibly difficult to prove. But this case is even weaker than that. Dr. Ford identified other witnesses to the event, and those witnesses either refuted her allegations or failed to corroborate them. For the reasons discussed below, I do not think that a reasonable prosecutor would bring this case based on the evidence before the Committee. Nor do I believe that this evidence is sufficient to satisfy the preponderance-of-the-evidence standard.”

Slate says[2] all of Mitchell’s points about Ford’s inconsistencies on the details of the attack, her memory of it, her therapy notes, etc., could be “challenged on its own”. “But beyond protests against those points, critics were more baffled by the absence of Kavanaugh from the memo itself.” A reopened FBI investigation “could provide evidence to counteract some of the pro-Kavanaugh messaging of this dubiously independent outside prosecutor.”

Vox’s Emily Stewart used a different characterization[3] in “Rachel Mitchell says ‘reasonable prosecutor’ wouldn’t bring a case against Kavanaugh – but it’s not a trial.”

Stewart writes[3]: “Mitchell’s memo … isn’t based on the results of that still-pending investigation, but her own review of the evidence after she questioned Ford and Kavanaugh during a Senate Judiciary Committee hearing about the allegations last week Republicans on the panel, who are all men and all white, brought her on as a ‘female assistant’ to participate in the hearing.”

“Mitchell’s memo may provide Republicans with talking points about Kavanaugh as the FBI investigation into the allegations against him goes on. But it also makes the point that this isn’t a trial, and Kavanaugh doesn’t face potential prosecution – just because there might not be a criminal case here doesn’t necessarily mean Kavanaugh should get the job.”